Back
2016 Supreme(Ori) 555
IN THE HIGH COURT OF ORISSA, CUTTACK
K.R. MOHAPATRA, J.
Chittaranjan Sahoo – Appellant
Versus
Niranjan Sahoo and others - Respondents
RFA NO.96 OF 2007
Decided On : 07-09-2016
For the Appellant : M/s. P.K. Routray, B.G. Mishra, N.K. Deo, R.K. Rout
For the Respondents: M/s. B.N. Muduli, A.K. Beura, M/s. D. Bhuyan, B. Bhuyan, Mrs. U. Padhy, A.K. Tripathy, B.N. Das, S.K. Panda, A.K. Sahu, R. Ray, U.C. Barik, R.N. Pratihari, A.K. Rout.
The main legal point established in the judgment is the determination of the devolution of interest in coparcenary property under the Hindu Succession Act, particularly Section 6, and the application of Mulla's Hindu Law to determine the share of the deceased's interest in the coparcenary property.
Headnote:
Partition - Hindu Succession Act - 6 - Summary of Acts and Sections: The court discussed the application of Hindu Succession Act, 1956, particularly Section 6, and its proviso to determine the devolution of interest in coparcenary property. The court also referred to Article 315 of Mulla's Hindu Law to determine the share of the deceased's interest in the coparcenary property. The court held that the amended provision of Section 6 of the Hindu Succession Act, 2005, had no application to the case, and the daughters were entitled to the share of their father and mother as an heir, not as a coparcener in the coparcenary. The court modified the finding of the trial court and determined the share of the parties in the ancestral and self-acquired properties.
Fact of the Case:
The suit was filed for partition of the suit property after the death of the recorded tenant, Abhina Sahoo, who had decided to divide the property among his sons and daughters. The defendants contested the suit, claiming prior partition and challenging the maintainability of the suit.
Finding of the Court:
The court found that there was no amicable partition between the parties and that the daughters of Abhina had never relinquished their share in the suit properties. The court also determined the share of the parties in the ancestral and self-acquired properties based on the Hindu Succession Act and Mulla's Hindu Law.
Issues: The issues included the maintainability of the suit, cause of action, amicable partition, relinquishment of share, construction and renovation of properties, and entitlement to the suit schedule property.
Ratio Decidendi: The court applied the provisions of the Hindu Succession Act, particularly Section 6 and its proviso, and referred to Article 315 of Mulla's Hindu Law to determine the devolution of interest in the coparcenary property. The court also considered the applicability of the amended provision of Section 6 of the Hindu Succession Act, 2005, and the rights of the daughters as coparceners.
Final Decision: The court modified the finding of the trial court and determined the share of the parties in the ancestral and self-acquired properties. The appeal was allowed to the extent indicated, and the judgment and decree were modified accordingly.
JUDGMENT :
K.R. Mohapatra, J.
The Defendant No.1 as appellant has filed this appeal assailing the judgment and decree dated 15.11.2006 and 29.11.2006 respectively passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in C.S.(I) No.322 of 2004.
2. Case of the plaintiff (respondent No.1 herein) in brief is that one Abhina Chandra Sahoo died leaving behind his widow, three sons and four daughters (genealogy given below).
Late Abhina Sahoo (1981)
Late Annapurna (D-3)
Chittaranjan (D-1)
Sudarsan (D-2)
Niranjan (plaintiff)
Sabitri (D-4)
Tilottoma (D-5)
Manorama (D-6)
Priyatama (D-7)
Said Abhina was the recorded tenant in respect of suit properties out of which Schedule ‘A’ property was his self-acquired property and Schedule ‘B’ property was his ancestral property. During his life time, Abhina had decided to divide the suit property by giving 1/4th share to each of his sons namely, plaintiff as well as defendant Nos.1 and 2. The daughters of Abhina, namely, defendants 4 to 7 had relinquished their share in the suit property. Defendants 1 and 2 were managing the business of Abhina. After death of Abhina in the year 1981, the plaintiff on 16.08.2004 requested defendants for an amicable partition of the suit property to which they denied. Hence, the suit was filed for partition.
3. Defendant Nos.5 and 7 were set ex parte vide order dated 25.02.2005. Defendant No.1-appellant filed his written statement challenging the maintainability of the suit. He contended that there was an amicable partition in the family in the year 1977 during the life time of Abhina. As per the said partition, defendant No.3 (widow of Abhina) was only entitled to right of residence till her death. Defendant No.1 separated himself from the joint family and was residing over ‘B’ schedule property by constructing a house thereon. Defendant No.1, however, denied that daughters of Abhina, i.e., defendants 4 to 7, had relinquished their share in the suit property. He also denied that the plaintiff had ever approached him for partition. As there was prior partition in the year 1977, the plaintiff had no cause of action to file the suit. Hence, he prayed for dismissal of the same.
The defendant No.2 though admitted in his written statement that schedule ‘A’ property is self-acquired property of Abhina, he denied that his sisters (defendants 5 to 7) had ever relinquished their share in the suit property. Defendant No.2 in his written statement contended that as per the partition, the defendant No.8 is entitled Ac.0.023 decimals of land as recorded in the Settlement ROR. He also claimed to have renovated the house in which he has been residing with his family members. He denied all other allegations made in the plaint and prayed for dismissal of the suit.
4. The defendants 3 and 4 adopted the written statement filed by defendant No.2.
5. Defendant No.6 (one of the daughters of Abhina) filed her written statement challenging the maintainability of the suit. She contended that her brothers misappropriated all the movables and immovables left by her father. The suit properties were the undivided joint family properties of the family. There were some houses existing over ‘B’ schedule property let out to different tenants and the defendant No.1 was appropriating rent therefrom. She further denied that there was any amicable partition during life time of said Abhina and she along with her sisters relinquished their shares in respect of the suit properties. Thus, she prayed for dismissal of the suit.
6. Defendant No.8, the son of late Rama Chandra Sahoo, (brother of Abhina), filed his written statement claiming Ac.0.023 decimals over Plot No.720 under Khata No.386, which was recorded in the name of his father in the Settlement ROR and he claimed to have been in possession over the same. Defendant No.8 claimed to allot said plot in his
